R v Envirogun Ltd., 2023 SKCA 51

Court of Appeal for Saskatchewan Docket: CACR3244 Citation: R v Envirogun Ltd. , 2023 SKCA 51 Date: 2023-05-01 Between: Envirogun Ltd. and Clint Kimery Applicants/Appellants (Appellants) And His Majesty the King Respondent/Respondent (Respondent) Before: Richards C.J.S., Jackson and Leurer JJ.A. Disposition: Leave to appeal granted, appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Leurer On appeal from: 2019 SKQB 89 , Regina Appeal heard: September 20, 2022 Counsel: Breeanna Gebhart for the Appellants Pouria Tabrizi-Reardigan for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] The appellants, Envirogun Ltd. and Clint Kimery were convicted in the Provincial Court on a charge of failing to comply with an environmental protection order, contrary to ss. 74(1) (

c) and 74(2) of The Environmental Management and Protection Act, 2002 , SS 2002, c E-10.21 (since repealed) [ EMPA ]. They were fined and a remediation order was made. [ 2 ] The appellants appealed to what was then the Court of Queen’s Bench, acting as the

summary conviction appeal court. Their appeal was dismissed. See: R v Envirogun Ltd. , 2019 SKQB 89 , [2019] 9 WWR 303. [ 3 ] The appellants now apply, pursuant to s. 839 of the Criminal Code , for leave to appeal to this Court from the decision of the appeal judge. They submit that he erred by (

a) finding the offence in issue is one of strict liability, (

b) misunderstanding the evidence as it relates to the defences of due diligence and impossibility, (

c) misapplying the defence of impossibility, and (

d) upholding an unfit sentence. [ 4 ] As explained below, I would grant leave to appeal only with respect to the issue of whether the offence in question is a strict liability offence and, on that point, I would dismiss the appeal. Given that the dates specified for action under the remediation order have long since passed, the parties will need to provide further submissions so that those dates can be appropriately amended. II. BACKGROUND [ 5 ] This appeal has a long and complicated backstory. That backstory involves a frequent failure to distinguish between Mr. Kimery himself and Envirogun, his corporation.

But, given that nothing turns on this differentiation for the purposes of the matters presently in issue, I will not attempt to sort all of this out in the discussion that follows. Rather, I will often use the term “the appellants” and will do so even though, technically, it might sometimes be more accurate to refer to Mr. Kimery only or to Envirogun only. A. The facility and its closure [ 6 ] Envirogun operated a hazardous waste site from 1996 to 2010 in the Rural Municipality of Sherwood [Municipality]. It collected, stored and treated hazardous waste. Mr.

Kimery is the sole shareholder and director of Envirogun. [ 7 ] Envirogun held an operating permit issued by the Ministry of Environment [Ministry]. It was issued on May 30, 2008, and expired on May 31, 2010. [ 8 ] At the time the permit was issued, the Ministry directed Envirogun to provide it with reclamation and decommissioning plans for the facility and with cost estimates in that regard. This was to be done before October 31, 2009. The appellants did not comply with that direction.

The operating permit also prohibited Envirogun from removing, abandoning, disposing of or permanently closing all or any part of the facility without the Ministry’s approval. [ 9 ] When the Ministry issued the permit, the appellants were in a tax dispute with the Municipality. Sometime in 2006, Mr. Kimery had discovered errors in the property tax assessment and realized more taxes than necessary had been paid. He wanted the Municipality to forgive the property taxes going forward to compensate for the previous overpayments.

When his efforts to persuade the Municipality failed, he refused to pay any property taxes. The Municipality ultimately took title to the property where the facility was located.

[ 10 ] On January 11, 2010, the Municipality directed the appellants to vacate the property by the end of the month. It extended that deadline to February 17, 2010, at their request. The appellants removed some personal property from the site but left behind most, if not all, of the hazardous waste. [ 11 ] The appellants did not inform the Ministry that the Municipality had taken title to the property or that they had vacated the property and ceased operations on the site. The Ministry only learned about these developments on July 20, 2010, when it received a letter from the Municipality.

The letter informed the Ministry that the vacated property was contaminated, that hazardous materials were not being safely stored, that many steel drums were leaking, and that berms were overflowing with a mixture of oil, antifreeze and unknown substances. The Municipality requested financial assistance from the Ministry to decontaminate the site. B. The NOI and the EPO [ 12 ] On October 26, 2010, the Ministry served the appellants with a notice of intent [NOI] to issue an environmental protection order [EPO]. The NOI specified the reasons why the Ministry was considering the issuance of an EPO.

Among other things, the NOI stated that the appellants were in violation of s. 17(1) of The Hazardous Substances and Waste Dangerous Goods Regulations , RRS c E- 10.2 Reg 3 , because they had closed a hazardous waste storage facility without approval. The NOI gave the appellants until November 30, 2010, to: (

a) characterize all substances stored at the facility; (

b) complete a National Classification System for Contaminated Site assessment for the facility; (

c) remove all hazardous substances and waste dangerous goods materials in accordance with federal and provincial legislation; (

d) conduct a Phase II site assessment; and (

e) provide the Ministry with a remedial action plan or risk management plan. [ 13 ] The NOI also informed the appellants of their right to make written submissions to the Minister of Environment concerning the proposed order within 30 days. [ 14 ] On December 7, 2010, the appellants’ lawyer wrote a brief letter to the Ministry acknowledging that the appellants’ business had been discontinued. The letter asserted “everything was in a satisfactory state” when the appellants vacated the property and claimed that it was impossible for them to re-enter the property to comply with the proposed order.

The appellants informed the Ministry that they had directed the Municipality to ensure there was no contamination and that they could only assume the Municipality was complying with this responsibility. The appellants made no other submissions to the Ministry. [ 15 ] The Minister then issued an EPO on January 11, 2011, directed to the appellants pursuant to s. 47 of the EMPA . It stated that the Minister believed: (

a) the appellants had improperly stored hazardous substances that may cause or were causing an adverse environmental effect; (

b) the appellants were responsible for a discharge as defined in s. 2(

w) of the EMPA ; and (

c) it was advisable to issue the EPO to prevent or stop impairment of the environment. Among other things, the EPO asserted that the appellants had not complied with the conditions of their operating permit by failing to notify the Ministry regarding the closure of the facility. [ 16 ] The EPO directed the appellants to take six specific steps by March 31, 2011: (

a) characterize all substances stored at the facility; (

b) complete a National Classification System for Contaminated Site assessment for the facility; (

c) remove all hazardous substances in accordance with federal and provincial legislation; (

d) carry out a Phase II site assessment acceptable to the Ministry; (

e) provide the Ministry with a corrective action plan or risk management plan; and (

f) comply with the terms of the corrective action plan or risk management plan. [ 17 ] The EPO informed the appellants that they could access the property by contacting a Municipality official at a specified telephone number. C. The appeals concerning the EPO [ 18 ] The appellants challenged the validity of the EPO by appealing it to the Court of Queen’s Bench pursuant to s. 54(1) of the EMPA .

They made three arguments. [ 19 ] First, the appellants contended the Minister’s concerns as stated in the NOI were less detailed than they were in the EPO and that, as a result, they had not been given an adequate opportunity to meet or respond to those concerns before the EPO issued. Second, they said the EPO was invalid because they were no longer in control of the property.

Third, they argued they were not aware of any discharge of hazardous materials before they were ordered to vacate the property and, as a consequence, they should not be required to clean up the site. [ 20 ] The appeal judge rejected the argument that the contents of the NOI were less detailed than the contents of the EPO and dismissed the assertion that the appellants were misled about the Minister’s concerns. Further, she rejected the argument that the Minister failed to give the appellants an adequate opportunity to comply.

[21] The appeal judge also dismissed the argument that the Municipality was legally responsible for cleaning up the site. She heldthe Minister had the authority to require the appellants to comply with the EPO even if they no longer owned the property. The appealjudge emphasized the appellants had a legal obligation to properly deal with the hazardous waste before they vacated the property. Sheconcluded the appellants were properly subject to the EPO. [22] The appellants took issue with that decision and appealed to this Court. Their appeal was dismissed and the validity of the EPOwas thereby upheld.

See: EnviroGun Ltd. v Saskatchewan (Minister of the Environment), 2012 SKCA 73, 399 Sask R 69. D. The trial [23] The appellants were charged with failing to comply with the EPO. The trial commenced in the Provincial Court in 2013. It tookalmost two years to finish due largely to various applications made by the appellants. See: R v EnviroGun Ltd., 2015 SKPC 18, 468 SaskR 106. [24] The first application yielded a decision to the effect that the appellants could not defend themselves by collaterally challengingthe validity of the EPO.

In the same decision, the trial judge rejected the appellants’ argument that the charge they faced required proof ofguilty intent. He held that the offence was one of strict liability. [25] The second application was for a non-suit. The appellants argued that the EPO was invalid because the employee of theMinistry who had signed and issued it was not authorized to act for the Minister of Environment.

The trial judge determined that theemployee was authorized to act for the Minister and dismissed the application. [26] The appellants’ third application involved an argument that the EPO was invalid on the ground that there had been an improperdelegation of ministerial authority. That application was also dismissed. [27] The appellants’ primary position at the trial proper was that any legal responsibility they had under the EMPA ended when theycomplied with the Municipality’s order to vacate the property.

The appellants’ alternative argument was that they had complied with someof the conditions of the EPO and had exercised due diligence in relation to others. [28] The trial judge was not persuaded by these arguments. He found as a fact that the appellants had never had any intention ofcomplying with the EPO and that their due diligence defences were not credible or reasonable. Accordingly, he determined that theappellants were guilty as charged. [29] The trial judge sentenced the appellants to each pay a fine of $6,000 plus a surcharge of $2,400.

In addition, the trial judgeimposed a remediation order pursuant to s. 74(4) of the EMPA. Under the terms of that order, the appellants were to be granted access tothe site to carry out corrective measures by July 1, 2015. [30] On the date of sentencing, the appellants raised concerns about the trial judge’s reasons for their conviction. First, they arguedthat he had referred to the wrong date in recounting when the EPO had been issued.

The trial judge acknowledged this mistake. [31] Next, the appellants argued that at paragraphs 41 and 59 of his decision, the trial judge had incorrectly characterized theiractions by not referring to a letter that their counsel had sent to the Ministry dated December 7, 2010.

This was the letter in which counselfor the appellants had told the Ministry that “everything was in a satisfactory state” when the appellants vacated the property and claimedit was impossible for them to re-enter the property to comply with the proposed order. [32] The appellants argued that as a result of these errors, the trial judge could not have properly concluded whether the defence ofdue diligence had been made out. They requested a mistrial. [33] The trial judge refused to declare a mistrial.

He explained that he had not been under any meaningful misapprehension aboutthe evidence and the issues raised by counsel did not change his conclusions. E. The first

summary conviction appeal decision [34] The appellants appealed their conviction to the Court of Queen’s Bench. The appeal was allowed on the basis that the trialjudge had erred by refusing to hear evidence or consider arguments concerning the validity of the EPO. See: R v Envirogun Ltd., 2016SKQB 258, [2016] 12 WWR 357. [35] The Crown then appealed to this Court. It concluded that the Legislature had not intended to confer a right to collaterally attackthe validity of an EPO in prosecutions where the accused is charged with violating an EPO. The Court allowed the appeal and remitted thecase to the

summary conviction appeal court. See: R v Envirogun Ltd., 2018 SKCA 8, [2018] 3 WWR 247. The appellants’ application forleave to appeal this Court’s decision to the Supreme Court of Canada was dismissed. See: R v Envirogun Ltd., . F. The second

summary conviction appeal decision [36] Back in the Court of Queen’s Bench, the appellants contended that the trial judge had erred by concluding the offence was oneof strict liability. They argued that because the EPO imposed a positive obligation on them to perform certain acts, the offence of failing tocomply with the EPO was akin to criminal contempt. [37] The appeal judge rejected the analogy to criminal contempt, finding that the requirement of positive action did not necessarilycreate a mens rea offence. More fundamentally, the appeal judge reasoned that the appellants had been prosecuted under an environmentallaw statute creating public welfare offences. The

section of the EMPA under which the appellants had been charged did not include wordssuch as “wilfully”, “with intent”, “knowingly”, “for the purpose of”, or “intentionally” and therefore did not require the prosecution to

prove mens rea . [ 38 ] The appeal judge also rejected the appellants’ argument that the trial judge had misunderstood the evidence and ought to have declared a mistrial. He said the transcript and the trial decision made it clear that the trial judge had considered all of the evidence even if he had not referred to each individual aspect of it. He observed that the trial judge had also made it clear that the appellants had sent the letter to the Ministry prior to the issuance of the EPO and said this action on their part did not amount to due diligence in complying with the EPO.

The appeal judge also concluded that the trial judge had considered the appellants’ arguments and their request for a mistrial. He determined that the trial judge had not been under any misapprehension with respect to the defence of due diligence and that it had not been necessary for him to declare a mistrial. In light of the evidence as a whole, the appeal judge found no basis to intervene. [ 39 ] The appeal judge also considered the question of whether the trial judge had erred in concluding the appellants had failed to establish the defence of due diligence.

In this regard, he held that the trial judge’s findings of fact were owed deference and were amply supported by the evidence. [ 40 ] Next, the appeal judge dealt with an argument that the trial judge had erred by focusing on the defence of due diligence and by effectively depriving the appellants of the right to a reasonable doubt about their guilt. The appeal judge rejected that argument. [ 41 ] Lastly, the appeal judge worked through the appellants’ challenge to the surcharges they were required to pay, relying on the Supreme Court of Canada decision in R v Boudreault , 2018 SCC 58 , [2018] 3 SCR 599 .

They also argued that the remediation order imposed on them under s. 74 of the EMPA was in the nature of mandamus but was faulty because it had not been made in accordance with the principles that apply to mandamus orders. The appeal judge rejected both of these arguments. G. The preliminary proceedings in this Court [ 42 ] The appellants sought leave to appeal to this Court on three grounds and filed a draft notice of appeal on April 24, 2019. Those grounds were as follows: 1. The learned appellate judge erred in finding that the appellants had not established the defence of due diligence. 2.

The learned appellate judge erred in finding the offence was regulatory in nature and not subject to prosecutorial proof of mens rea and the defence of reasonable doubt. 3. The learned appellate judge erred in upholding the remediation order in sentence. [ 43 ] The appellants then made an application for disclosure in October of 2020. The subject of the application included what they termed “diarized records”. These appeared to relate to journals or notes made by Ministry employees.

The appellants also sought policy documents concerning The Environmental Management and Protection Act, 2010 , SS 2010, c E-10.22 , which replaced the EMPA under which the appellants were charged. In addition, they also asked for a “case number” used for file tracking purposes, information about the “delegation of authority” to Ministry employees and information relating to one of the conditions in the EPO.

They also applied to amend their notice of appeal by replacing it with a lengthy document. [ 44 ] Justice Ottenbreit, sitting in Chambers, allowed the application to amend the notice of appeal only to the extent of permitting the appellants to argue that the appeal judge had erred by failing to find that the defence of impossibility had been made out. Justice Ottenbreit’s fiat emphasized that this ground must be argued “based on the record”. See: R v Envirogun Ltd. (19 March 2021) Regina, CACR3244 (Sask CA). The appellants’ grounds of appeal were outlined as follows in Ottenbreit J.A.’s fiat: (

a) the appeal judge erred in finding that the appellants had not established the defence of due diligence or impossibility based on the record; (

b) the appeal judge erred in finding the offence was regulatory in nature and not subject to prosecutorial proof of mens rea and the defence of reasonable doubt; and (

c) the appeal judge erred in upholding the remediation order in sentence. [ 45 ] Justice Ottenbreit dismissed the disclosure application, characterizing it as a “thinly disguised attempt to relitigate the validity of the EPO” as well as “an impermissible fishing expedition” (at para 46). [ 46 ] The appellants then made an application under s. 683 of the Criminal Code for an order to arrange for an “examination of discovery” to “verify or discredit” the Ministry and the Crown’s disclosure practices.

I dismissed this application in Chambers, without prejudice to the appellants’ right to bring the application before a full panel of the Court in the context of the appeal proper. [ 47 ] Next, the appellants filed a notice of motion seeking journal notes or records of the day-to-day activities, actions and encounters of the Ministry employees who had been involved in the issuance of the EPO. They argued that the disclosure issue had to be resolved prior to the appeal by the appointment of a commissioner who would examine certain Crown witnesses.

The appellants claimed they were unable to prepare a factum without having this evidence, which they planned to adduce as fresh evidence on appeal. In making this submission, the appellants advanced a theory that the Ministry had issued the EPO for the purpose of benefitting the Municipality, knowing that they had no ability to comply with the terms of the order. The appellants said that they expected the unearthed evidence would support these allegations of a conspiracy and would help them finally make out the defence of due diligence. [ 48 ] The Court heard this application and dismissed it on November 8, 2021.

See: R v Envirogun Ltd. , 2021 SKCA 144 . It found that the appellants had failed to establish a reasonable probability or even a reasonable possibility that admissible fresh evidence would be generated if the Court were to grant the application. In making this determination, the Court characterized the appellants’ disclosure application as another impermissible attempt to attack the validity of the EPO.

[49] Subsequent to the Court’s decision, the appellants filed an additional notice of motion. Once again, they requested an “inquiryof discovery” under s. 683 of the Criminal Code to examine employees of the Ministry regarding their disclosure practices and contendedthat they could not file a factum without the availability of the evidence they believed the “inquiry of discovery” would unearth.

Similar totheir previous application, the appellants sought “missing communication exchanges, worksheet, memos, day timers, and planningevidence, including individual timesheets of certain [Ministry] personnel that equates to a daily diary of activities”. As they hadpreviously, the appellants took issue with the validity of the EPO and argued that they should be allowed to collaterally attack it. [50] In a Chambers appearance on February 23, 2022, the appellants were told that only a full panel would be able to hear theapplication. It was ultimately heard and dismissed on June 2, 2022. III.

ANALYSIS [51] The appellants seek leave to appeal in an effort to overturn the decision of the appeal judge. They do so on the grounds that heerred by: (

a) characterizing the offences in issue as being ones of strict liability; (

b) misunderstanding the evidence, specifically as it relates to the defences of due diligence and impossibility; (

c) mishandling the defence of impossibility; and (

d) imposing a sentence that is unfit. [52] I will address each of these points in turn. At the outset, however, it is necessary to underline that this is a

summary convictionmatter. As such, s. 839 of the Criminal Code applies. It provides that an appeal is available in circumstances like the one at hand only withleave and only on grounds that involve questions of law alone. In order to obtain leave in relation to a question of law, the appellants mustestablish that the question in issue is significant to the administration of justice generally or that their position with respect to it iscompellingly meritorious. Leave should be granted sparingly in light of the fact that there has already been one level of appeal. See: R vBray, 2017 SKCA 17 at para 2 [Bray]. A.

The “strict liability offence” issue [53] The appellants were convicted of failing to comply with a ministerial order, the EPO, contrary to ss. 74(1)(

c) and 74(2) of theEMPA. Those provisions read as follows: 74(1) No person shall: … (

c) fail to comply with an order of the minister issued pursuant to this Act or the regulations; … …

(2) Every person who contravenes a provision of this Act or the regulations is guilty of an offence and liable on

summary conviction to afine not exceeding $1,000,000, to imprisonment not exceeding three years or to both that fine and imprisonment. [54] As explained above, the trial judge found that the offence here is one of strict liability rather than, as argued by the appellants,one that requires proof of intent or full mens rea. That conclusion was endorsed by the appeal judge. [55] The appellants contend the appeal judge erred.

While acknowledging that public welfare regulatory schemes typically involvestrict liability offences, they submit that the charges in issue should stand on different ground because of the “absolute authority” enjoyedby the Minister in making such orders, the fact that the EPO targeted them specifically and because the charge they faced was concernedwith their non-compliance with a ministerial order, rather than with directly preventing or controlling pollution. [56] In my view, the question of whether the offence in issue is one of strict liability is of sufficient importance that it warrants leaveto appeal being granted.

In the words of Bray, the answer to the question raised by the appellants in relation to this issue will be“significant to the administration of justice generally” (at para 2). However, that said, I am not persuaded by the submissions of theappellants on this point. [57] The leading case in this area is, of course, R v Sault Ste-Marie, (SCC), [1978] 2 SCR 1299 [Sault Ste-Marie].There, the Supreme Court recognized three categories of offences: (

a) those in which mens rea consisting of some positive state of mindsuch as intention, knowledge or recklessness must be proved by the prosecution; (

b) offences of strict liability where there is norequirement for the prosecution to prove mens rea and where the doing of the prohibited act imports the offence, leaving it open to theaccused to avoid liability by proving that they took all reasonable care; and (

c) offences of absolute liability where liability attaches on thedoing of the prohibited act with no opportunity for the accused to exculpate themselves by showing that they were free of fault. [58] In Sault Ste-Marie, the Court indicated that “public welfare offences” fall prima facie into the second category. It explained thatan offence of this type would be in the first category only if words such as “wilfully”, “with intent”, “knowingly”, or “intentionally” werecontained in the statutory provision creating it.

The Court observed, at page 1327, that “[p]ollution offences are undoubtedly publicwelfare offences enacted in the interests of public health”. On the face of things, therefore, the offence created by ss. 74(1)(

c) and (2) ofthe EMPA is strict liability in nature: it concerns public welfare and those provisions do not feature words such as “wilfully” and so forth. [59] I see no merit in the appellants’ argument that the offence in issue here is a mens rea offence. First, I do not accept the notion

that, as per paragraph 27 of the appellants’ factum, “the Minister has absolute authority to include whichever and whatever orders theydeem fitting”. There is no such thing as an authority of this kind that is unbounded or absolute. See, for example: Roncarelli v Duplessis, (SCC), [1959] SCR 121. Ministerial powers of the sort in question must be exercised in good faith and in ways that servethe purpose of the statute that confers authority on the Minister.

In any event, the EMPA itself provides, in s. 47, that the Minister mayonly issue an order that they consider “necessary to protect and restore the environment”. [60] Second, and more fundamentally, the appellants’ argument does not align with the underlying rationale of Sault Ste-Marie. TheSupreme Court’s thinking in that case reflected a recognition that neither of the two stark alternatives of full mens rea and absoluteliability were appropriate for the prosecution of public welfare offences such as the offence in issue here.

As a result, it endorsed themiddle ground of strict liability to ensure the fulfillment of the important goals of such offences while, at the same time, guarding againstthe punishment of entirely blameless individuals. There is nothing in any of the Court’s reasoning to suggest a different approach shouldbe taken with respect to offences based on the breach of a ministerial order as opposed to those where ministerial orders play no role.

Noris there anything in the Court’s reasoning to indicate that, in relation to the alleged breach of an order like an EPO, i.e., an order aimedspecifically at a particular individual or individuals, a different approach should apply than if the offence involves an alleged breach of astatutory provision that is applicable to everyone. In short, the appellants’ lines of argument on this point seem to be cut from whole clothand tailored for no purpose other than to match up with the circumstances they face in this case.

Not insignificantly, they are unable to citeany authority in support of the position they take. [61] Thus, at the end of the day, I see no error in the appeal judge’s conclusion that the offence created by ss. 74(1)(

c) and (2) of theEMPA is a strict liability offence. B. The “misunderstanding the evidence” issue [62] The appellants’ central argument in this appeal is that the trial judge erred in his treatment of various aspects of the evidencerelating to the defence of due diligence. They suggest that he made findings of fact that were unsupported by the evidence or in directcontradiction to the evidence and go on to say that those findings were “erroneously upheld” or “compounded” by the appeal judge.

Inadvancing these submissions, the appellants effectively attempt to re-argue the question of whether they acted with due diligence and todo so from the ground up. These kinds of submissions are obviously appropriate at trial but they ignore the reality that appeals to thisCourt in relation to

summary conviction matters must be grounded on alleged errors of law made by the appeal judge, not on errors madeby the trial judge. [63] The key point emphasized by the appellants in this part of their submissions is that, at paragraph 30 of his decision, the trialjudge referred to the EPO as having been issued in January of 2010, essentially the same time as when the Municipality took possession oftheir property. This was incorrect because, as all concerned agree, the EPO was issued on January 11, 2011, not 2010.

The appellantssuggest that this error filtered through into other parts of the trial judge’s decision – especially to paragraphs 46 and 59 – and ended upaffecting the conclusions that he reached about their liability. [64] The appeal judge addressed this same line of argument at paragraphs 47–67 of his decision. In so doing, he carefully reviewedthe detail of the appellants’ submissions, the applicable standard of review, and the comments made by the trial judge when, after hisdecision had been rendered, the appellants drew some factual errors to his attention and asked that a mistrial be declared.

The appeal judgebegan by expressing his bottom line as follows: [60] In this case, when I read the trial judge’s reasons as a whole, including the explanatory comments reflected in the transcript of hisexchange with Mr. MacKay on the date of sentencing submissions, I am unable to conclude that there was a material misapprehension ofthe evidence requiring appellate intervention. I will explain. [65] The appeal judge then quoted those parts of the transcript where, after delivering his judgment, the trial judge had responded tothe concerns raised by the appellants.

The appeal judge concluded in this way: [63] In my view, when read in conjunction with the reasons contained in the Trial Decision, these passages from the transcript make itclear that the trial judge considered all the evidence, even if he did not refer to each individual item in his written reasons. If anything, hemade errors with respect to dates in his written reasons. It is clear from the record as a whole that the trial judge based his conclusionregarding the defence of due diligence on a consideration of all the evidence, including the letter written by Mr.

MacKay before the EPOwas issued, and the email exchange between Mr. Kimery and Mr. Yuen after the EPO was issued. However, as I read the record, the trialjudge made it clear that the aspects of the appellants’ actions to which Mr. MacKay referred in the exchange on the date of sentencing(namely writing to the Ministry before the EPO was issued to argue that compliance would be impossible, and writing to Mr.

Yuen afterthe EPO was issued to seek an opportunity to argue their case) did not amount to due diligence. [64] Accordingly, I am unable to conclude that, to the extent the trial judge may have made an error in his recollection or assessment ofthe evidence, that such an error had any material bearing on the verdict.

This ground of appeal must fail on this basis. … [67] In this case, the trial judge acknowledged the error, analysed it in light of the evidentiary implications relevant to the writtenreasons in the Trial Decision, and determined that he was not under any misapprehension with respect to the defence of due diligence, andthat a mistrial was not appropriate.

Given how he resolved the errors contained in the impugned portions of the Trial Decision with hisfindings of fact in later portions, and in light of the evidence as a whole, I see no basis upon which to interfere with the trial judge’sexercise of discretion in that respect. (Emphasis added) [66] The appellants do not suggest that the appeal judge made any error of law or otherwise in the part of his decision where, atparagraphs 56–59, he laid out the principles that governed his assessment of the alleged errors in the trial judge’s treatment of theevidence.

Rather, they effectively say that, in reviewing the trial judge’s decision, the appeal judge should have come to a different

conclusion. For example, they argue that the evidence supports a finding that they had in fact satisfied paragraph 1 of the EPO – therequirement to characterize all substances stored at the facility – because of the content of their annual reports.

By way of anotherexample, the appellants contend that they should have been found to have fulfilled paragraph 2 of the EPO – the requirement to completea National Classification System for Contaminated Site assessment – because, in their view, there was no contamination at the site andtherefore the only appropriate classification was INS (insufficient information to properly classify). As is apparent, these kinds ofarguments are very tightly bound up with questions of how the evidence should have been assessed.

They do not yield, and certainly donot clearly yield, a “question of law alone” on which to find an appeal. [67] I appreciate that the issue of whether there is any evidence to sustain a conviction has been characterized as being a question oflaw. See: R v Waite, (NB CA), [1965] 1 CCC 301 (NBCA) at 303; R v Ogg-Moss, (SCC), [1984] 2 SCR173 at 179–180. However, I do not see the appellants’ submissions as being arguments of this sort. Rather, they are concerned about thesufficiency of the evidence.

This is not something that raises a question of law. [68] A further general difficulty with the appellants’ arguments on the factual and evidentiary side of this case is that they tend toignore the reality that, in order for their appeal to succeed, they would have to establish that there was a fatal error in the appeal judge’sassessment of whether they had acted with due diligence in respect of each and every one of the six different obligations imposed on themby the EPO.

Even if, for example, there was an error in the appeal judge’s finding that they did not act with due diligence in respect oftheir obligation to “remove all hazardous substances in accordance with federal and provincial legislation”, their appeal would nonethelesshave to be dismissed unless they could also establish that they acted with due diligence in characterizing the substances, completing aNational Classification System for Contaminated Site assessment, carrying out a site assessment, providing a corrective action plan or riskmanagement plan and complying with its terms.

This, of course, is a much higher hill to climb than showing that there was a problem inrelation to the assessment of due diligence in removing hazardous substances, full stop. All of this greatly complicates the appellants’obligation to show that any error of law that they might try to identify is compellingly meritorious in the sense required by Bray. [69] In the end, I would not grant the appellants leave to appeal on the issues concerning how the appeal judge treated the evidenceor reviewed the trial judge’s findings of fact. C.

The “defence of impossibility” issue [70] The appellants argue that the appeal judge erred in his treatment of what they describe as the issue of “impossibility”. They saythat their ability to comply with the EPO was frustrated by the seizure of their property and they suggest it is speculative or unclearwhether they would have been allowed to enter the property to do remedial work.

Further, the appellants submit that the permits necessaryto transport the substances in issue required that they have a site from which to operate and that they had no such site after theMunicipality took over their property. [71] This line of attack reveals no error of law as required by s. 839 of the Criminal Code. Rather, at bottom, it is once again anargument about how the evidence should have been interpreted. In this regard, I can see no error of law on the part of the appeal judge.

Atparagraph 68 of his reasons, he noted the appellants’ submission that the trial judge had failed to properly consider evidence suggestingthat compliance with the EPO was impossible and he then went on to find that the trial judge had not overlooked evidence and concludedthat the trial judge’s findings were amply supported by the evidence. [72] In any event, and by way of additional particulars in this regard, I note that there appear to be significant evidentiary problemswith the appellants’ “impossibility” arguments: (

a) to the extent that the appellants say a lack of access to the property made compliance with the EPO impossible, the EPO itselfprovided that the administrator of the Municipality had confirmed that the Municipality would “provide access to enable Clint Kimery tocarry out obligations pursuant to this Order”. The administrator testified that the appellants never contacted him about accessing the site; (

b) to the extent that the argument is that the appellants needed a site in order to obtain the necessary permits to remove materials,this too would seem to be answered by the fact that the Municipality was prepared to allow access to the site. In any event, the record as towhat is or is not required in this regard is too poorly developed in the evidence to be of much assistance to the appellants. One potentialcontractor based in North Dakota who might have dealt with two tanks of oil on the property was reported by Mr.

Kimery to have beenconcerned about the availability of an export permit if the appellants had no site. However, there is no suggestion that the appellants, inreaction to that concern, approached the Ministry in an effort to find a way to work around whatever problem might have existed. Nor isthere a suggestion that the appellants attempted to find another company to remove the oil; (

c) as for the idea that compliance with the EPO was impossible because the appellants lacked the financial resources to do therequired work, the trial judge observed, at paragraph 63 of his decision, that no details of either Envirogun’s or Mr. Kimery’s financialsituation had been put in evidence; and (

d) as for the argument that cold weather prevented the removal of at least some of the materials in issue by the EPO deadline, thetrial judge noted, at paragraph 61 of his decision, that no request for further time had been made and that, in any event, cold weather didnot prevent compliance with the whole of the EPO. [73] In their factum, the appellants cite R v Cobalt Construction Inc., 2018 YKSC 36, where the Court said that, to establish adefence of due diligence based on an inability to provide a decommissioning plan, Cobalt Construction was required to have advised theregulator of the impossibility of compliance.

The appellants suggest that the case here is different because, in their view, Mr. Kimeryattempted to communicate multiple times with the Ministry to the effect that compliance with the EPO was impossible but that theMinistry had ignored these communications. There might be an interesting question of law here – can a party in the appellants’ positionrely on impossibility if they did not communicate that impossibility to the regulator – but it would arise only if, in fact, it was impossiblefor the appellants to have complied with the EPO.

More importantly, it would arise only if this issue had been a basis for the appealjudge’s reasoning. However, it was not. [74] By way of a bottom line on this point, I do not see the appellants’ submissions with respect to the concept of impossibility as

involving an error of law in the decision of the appeal judge and, even if there is an error of law hiding somewhere in the underbrush, it isnot one that meets the test prescribed by Bray. D. The “remediation order” issue [75] As indicated above, the trial judge imposed a sentence that required each of the appellants to pay a fine of $6,000 plus asurcharge of $2,400. He also made a remediation order under s. 74(4) of the EMPA. That order provides as follows: 1.

All references in this Order to location shall refer to the former business premises of EnviroGun Ltd. as described in the judgment in thisproceeding, and it shall be a condition precedent to the operation of this Order that access to the site for the purposes required by thisOrder shall be made available to the parties. The Ministry of the Environment of the Province of Saskatchewan may expedite thisavailability, and advise the parties in writing of the terms and any conditions of this access within ten days of the issuance of this Order. 2.

That the parties shall by July 1, 2015 produce an inventory list to be delivered to the Minister of the Environment that characterizes allpetroleum and hydro-carbon and/or related hazardous substances presently stored at the former EnviroGun facility. 3. That this inventory list will comply with classification of substances according to the National Classification System for hazardouspetroleum and hydro-carbon substances. 4.

That the parties will by August 1, 2015 provide to the Minister of the Environment for Saskatchewan a Corrective Action Plan thatcomplies with accepted environmental industry standards for petroleum and hydro-carbon impacted sites. 5. That the parties will by September 1, 2015 remove all hazardous petroleum and hydro-carbon substances in accordance with all relevantlegislation and environmental industry standards and practices. 6.

That the parties will by September 1, 2015 carry out a Phase 2 assessment of the site according to accepted environmental industrystandards for petroleum and hydro-carbon sites, and provide it to the Minister of the Environment for Saskatchewan. 7. That the parties will by October 1, 2015 comply with any and all requirements remaining under the Corrective Action Plan and/orAssessment plan. [76] All of this was sustained by the appeal judge.

He rejected the appellants’ argument that the trial judge was bound to apply theprinciples governing mandamus when imposing the remediation order and found no basis on which to intervene. He wrote as follows: [115] In this case, when I consider the order made by the trial judge, I find nothing warranting intervention. The record, when read as awhole, reflects that he considered the nature of the offence and the circumstances of its commission, and concluded that the primaryconsideration in sentencing was compliant with whatever measures were necessary to remediate the site.

Given the evidence before him, Iam unable to conclude that the order, in particular, or the sentence as a whole, is demonstrably unfit. Nor am I able to conclude that thetrial judge otherwise erred in principle in a fashion that affected the sentence. [77] The appellants advance somewhat different arguments about their sentence in this Court, but, again, their concern is with theremediation order. They suggest that order must be seen as resulting in an unfit sentence given that there was no known or provencontamination of the site and that they had no prior convictions for environmental offences.

They also contend that the appeal judge failedto take into account the fact that the site has been sold to a third party and is not currently in their possession.

The appellants also seem toreframe some of these same concerns to argue that the appeal judge erred in principle by failing to overturn the remediation order on theground that they were no longer in control or in possession of the site and by failing to realize that the EPO thereby saddled them withorders that they could not satisfy. [78] In dealing with these arguments, it is important to reiterate that, as the Crown stresses, s. 839 of the Criminal Code allows forappeals only on questions of law.

In this regard, it is well established that the fitness of a sentence does not give rise to a question of law.Justice Vancise explained this as follows in R v Thue (1995), (SK CA), 134 Sask R 187 (QL) (CA): [7] This issue of whether the fitness of a sentence is a question of law alone has been considered by a number of courts of appeal inCanada. Chevalier J. (ad hoc), speaking for the majority in R. v.

Guida (1989), (QC CA), 51 C.C.C. (3d) 305 summedup the almost unanimous position of the appellate courts in Canada in these words: Moreover, it appears to me to be impossible to conclude that the imposition of a sentence which is too severe, or which is not sufficientlysevere, may constitute an error of law. A sentence which is not adequate is not an unlawful sentence.

In rendering sentence, the judgeexercises his discretion and in the absence of a provision which would make it subject to review on the sole ground that it is inadequate,for example, in ss. 687 and 822(6), one cannot consider that a mere error in the appreciation of the quantum of the sentence is a questionof law. [p. 311] … [10] The appropriateness or fitness of a sentence is not a question of law. It is only when a sentence is not permitted by statute, andtherefore illegal, as in R. v. Loughrey (1992), 1992 ABCA 196 , 73 C.C.C. (3d) 411 at 414 (Alta.

C.A.) or where there is an errorof law, that is “so bound up with the sentence that it should be held to be inherent in it” as in R. v. Paterson (BC CA),[1963] 2 C.C.C. 369 (B.C.C.A.) at 373, that the error in law permits a court of appeal to consider a sentence appeal from the

summaryconviction appeal court. See also: R v Grover, 2020 SKCA 40 at paras 8–16; R v Potoreyko, 2022 SKCA 71 at para 20; R v Coates, 2010 SKCA 152 at para 6; R vNistor, 2010 SKCA 62 at para 4, 350 Sask R 238; R v Nordstrom, 2014 SKCA 124 at para 86, 446 Sask R 270; R v Ahenakew, 2005SKCA 93 at para 19, 200 CCC (3d) 527; R v Big River First Nation, 2019 SKCA 117 at para 13, 28 CELR (4th) 218.

[79] Accordingly, the appellants’ central concern about the remediation order cannot be the subject of a grant of leave to appeal. Anargument that the order is simply too severe or potentially too onerous does not raise a question of law. [80] Even assuming, solely for purposes of argument, that the appellants might somehow clear the “question of law” hurdle inrelation to their claim that they cannot access the site to do the remediation work, their argument nonetheless immediately encounters afatal difficulty.

The remediation order itself is a full response to their concerns in that it specifically provides in paragraph 1, as follows: All references in this Order to location shall refer to the former business premises of EnviroGun Ltd. as described in the judgment in thisproceeding, and it shall be a condition precedent to the operation of this Order that access to the site for the purposes required by thisOrder shall be made available to the parties.

The Ministry of the Environment of the Province of Saskatchewan may expedite thisavailability, and advise the parties in writing of the terms and any conditions of this access within ten days of the issuance of this Order. (Emphasis added) [81] Thus, even if this line of argument might somehow be taken to involve a question of law, it cannot satisfy the test prescribed byBray because (

a) it is entirely particular to the facts of this case and is therefore not significant to the administration of justice generally,and (

b) the appellants’ case is self-evidently far from being compellingly meritorious. [82] In conclusion, therefore, I would not grant the appellants leave to appeal in relation to their concerns about the remediationorder. E. A final issue [83] The remediation order provides that the appellants must take various actions by dates in July through October of 2015.

Thosedates are obviously long past with the result that, once the order dismissing this appeal is taken out, the appellants will immediately be inlegal jeopardy because they will have failed to take the steps required by the order within the mandated timeframes. [84] The parties were unable to be of assistance with respect to how this problem should be handled and the Court did not receivesubmissions about what appropriate dates might be. Thus, there is some attraction to the idea of remitting this matter to the ProvincialCourt so that the dates in the remediation order can be appropriately amended.

However, it would seem that, in light of s. 687 of theCriminal Code, it falls to this Court to vary the order as necessary. See, for example: R v G.W.C., 2000 ABCA 333 at para 28, 150 CCC(3d) 513; R v Horbacio (1989), (MB CA), 56 Man R (2d) 179 (CA); R v Pelletier (1989), (QC CA),52 CCC (3d) 340 (Que CA); R v Cromwell, 2005 NSCA 137 at para 25, 202 CCC (3d) 310. [85] Accordingly, the Crown is directed to make submissions as to how each of the dates in the remediation order should beamended and to serve and file those submissions on or before the 21st day after this decision is released.

They need effect service only onMr. Kimery. That will be service on Envirogun as well. The appellants are directed to serve and file their submissions on this issue on orbefore 14 days after the Crown’s submission is served on them. Counsel should feel free to employ a letter format, as opposed to preparingformal briefs, if that would be more convenient. IV. CONCLUSION [86] I would grant the appellants leave to appeal on the question of whether the offence in issue here is one of strict liability.However, that said, I would dismiss their appeal.

As for all of the other grounds on which the appellants seek to overturn the decision ofthe appeal judge, I would deny them leave to appeal. [87] As just explained, there is a problem with the dates found in the remediation order. The Court will make a further order inrelation to that issue once supplementary submissions have been received. “Richards C.J.S.” Richards C.J.S.I concur. “Jackson J.A.” Jackson J.A.I concur. “Leurer J.A.” Leurer J.A.